Thomason v. State
| Decision Date | 16 July 1997 |
| Docket Number | No. S97P0285,S97P0285 |
| Citation | 486 S.E.2d 861,268 Ga. 298 |
| Parties | , 97 FCDR 2595 THOMASON v. The STATE. |
| Court | Georgia Supreme Court |
Charles Stephen Cox, Fred R. Simpson, Asst. Dist. Attys., Rome, Paige Reese Whitaker, Asst. Atty. Gen., Department of Law, Atlanta, and Tambra Pannell Colston, Dist. Atty., Rome, for the State.
Joseph L. Chambers, Sr., Prosecuting Attorneys Counsel, Smyrna, Michael Mears, MultiCounty Public Defender, and Steve Bayliss, Atlanta, for other interested party.
Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta.
Following a three day bench trial, appellant Gary Chad Thomason was convicted of malice murder, burglary, and possession of a firearm by a felon during the commission of a burglary. 1 The trial court sentenced Thomason Evidence was introduced at trial showing that shortly before noon on August 21, 1992, Floyd County police officers received an emergency telephone call from Jerry Self. Self, who called the police on his cellular phone, reported that upon driving into the driveway of his home, he had discovered an unfamiliar Oldsmobile Cutlass parked in the carport. Officers Corbin and Logan responded to Self's emergency call, and as they approached the Self residence, they drove slowly in order to see the house numbers. Because it was raining heavily, the officers rolled down the patrol car's windows in order to better observe the house numbers. As they came within 100 yards of the Self residence, Officers Corbin and Logan saw and heard an automobile approaching them from the direction of the Self residence. As the two cars approached one another, the officers observed that the other car was a light brown 1978 or 1979 model Oldsmobile Cutlass, with a lighter brown top, that was traveling approximately thirty miles an hour, and was accelerating. The officers testified that, as the two cars passed one another, the driver of the Oldsmobile looked directly at them, and they observed that the driver was a white male with brown curly hair, and that he was wearing a black baseball cap.
to death for the murder conviction, finding as statutory aggravating circumstances that the murder was committed during the commission of a burglary, and for the purpose of obtaining money and things of monetary value. 2 On appeal, we find that the trial court properly denied Thomason's motion to suppress certain evidence, because the searches and seizures that precipitated the collection of such evidence were permissible. We also find that the trial court properly admitted into evidence two eyewitness identifications of Thomason, made as he fled the murder scene, [268 Ga. 299] because no substantial likelihood of misidentification existed. Furthermore, to the extent that the trial court failed to follow the procedures delineated in the Unified Appeal Procedure, no reversible error occurred. Finding no error associated with the remaining enumerations raised on appeal, we affirm
The officers continued to the Self residence, and, upon pulling into the driveway, they saw a body laying on the ground, later identified as Self. He had been shot several times, and was dead when the officers arrived. Self's truck was found in front of the house, with the engine still running. The side window of the truck had been broken, and there was blood on the front seat. A window on the front of the Self residence had been broken, and the house had been burglarized. It was later discovered that earlier that same day, another house on the same street, the Blaylock residence, had been burglarized in a similar manner.
Local police were alerted to be on the lookout for a brown 1978 or 1979 Oldsmobile Cutlass, described as being "not as dark [brown] as the sheriff department's cars," with a lighter brown top, being driven by a white male. Shortly thereafter, a vehicle and driver matching that description were seen leaving a convenience store in nearby Calhoun. After following the Cutlass for approximately five minutes, City of Calhoun police officer Gilbert stopped the car, which was being driven by appellant Thomason. Thomason was asked to step out of the vehicle, and was "patted down" by the officer. The officer discovered a cigarette lighter in Thomason's pocket, which he returned to Thomason. Officer Gilbert observed that A sergeant with the Floyd County Police Department arrived on the scene, and was shown the blood stains on the currency and on Thomason's shirt. The sergeant cut a piece of the blood-stained material off Thomason's shirt tail and placed it in a plastic bag. At that point, Thomason was placed in the back of the Floyd County sergeant's patrol car. Before doing that, however, the sergeant conducted a second "pat down" of Thomason, and in so doing, discovered that the lighter in Thomason's pocket was engraved with the murder victim's name. He also discovered a ring and two gold chains in Thomason's pocket, both of which were later determined to have been taken in the Blaylock burglary. The Oldsmobile Cutlass was taken to a nearby holding facility.
Thomason's clothing was soaking wet, even though it had only just begun to rain very lightly in the Calhoun area, and that Thomason's shirt appeared to have blood stains on it. After Thomason consented to a search of the Cutlass, Officer Gilbert also observed crumpled currency on the car's console that appeared to have fresh blood on it. Officer Gilbert then handcuffed Thomason and placed him in the back of Gilbert's patrol car.
Approximately forty-five minutes after Thomason was stopped, Officers Logan and Corbin arrived on the scene, and identified Thomason as the individual they had seen driving away from the Self residence. They later identified the Oldsmobile Cutlass as the car they had observed accelerating away from the crime scene. Several items discovered in the Cutlass were identified as having been taken from the Self and Blaylock residences. It was determined that Self had died from three gunshot wounds, each made with a .38 caliber-type bullet. Among the items missing from the Self residence following the burglary was a .357 magnum pistol, which sometimes was loaded with .38 caliber ammunition. 3 Laboratory analyses later determined that the blood stains on Thomason's shirt matched Self's blood.
1. Viewed most favorably to the verdict, we determine that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Thomason was guilty of the crimes for which he was convicted. 4
2. Thomason argues that the trial court erred in denying his motion to suppress evidence gathered as a result of the State's warrantless seizures and searches of him and his car. In making this argument, Thomason claims that Officer Gilbert's investigatory stop of him was not based upon reasonable and articulable suspicion, and thus was illegal. Thomason also argues that even if the investigatory stop was legal, the subsequent search of the Cutlass exceeded the bounds of such a stop, and was not otherwise permissible. Thomason further alleges that his seizure was not based upon probable cause, and that the police search of his person was unreasonable. We will address each of these contentions in turn.
a. Thomason argues that the investigative stop of him by Calhoun Police Officer Gilbert was impermissible, because it was not based upon specific and articulable facts that, when taken together with the rational inferences arising therefrom, provided the requisite reasonable suspicion to warrant the resulting intrusion. 5 It is established that, in making this determination, we examine whether the detaining officer had a particularized and objective basis for reasonably suspecting that the particular individual stopped was or had been engaged in criminal activity. 6
Applying these principles to this case, we find that the initial stop of Thomason was based upon reasonable suspicion. Contrary to Thomason's argument, Officer Gilbert had more than a generalized description of the suspect he was seeking and the car he was The precedent relied upon by Thomason in arguing that the stop was not based on reasonable suspicion, Vansant, supra, is factually distinguishable. In Vansant, the investigating officer knew only that the suspect vehicle was a white van being driven in an intoxicated manner by a white male, and the officer admitted that he detained the suspect only because he was driving a white vehicle. 8 The officer in Vansant had no information to distinguish the van he stopped from all other white vans, such as its manufacturer, model, or model year. In contrast, Thomason's detention was initiated upon a much more particularized description of the suspect vehicle. 9 That specific and articulable information was sufficient to warrant Officer Gilbert's reasonable suspicion that the car and its driver were the subjects of the lookout request generated by Floyd County police, and thus warranted the investigative stop.
driving. Officer Gilbert knew the color of both the car and its top, the manufacturer, model, and model year of the car, and the driver's gender and race. That detailed information was sufficient to provide Officer Gilbert with the requisite particularized basis to warrant the investigative stop of Thomason. 7
b. Thomason argues that, even if the investigative stop was supported by reasonable suspicion, the subsequent warrantless search of his car exceeded the limits of an investigative stop, and was not based upon either probable cause or exigent circumstances, thus rendering it illegal. However, it is undisputed that, after Officer Gilbert initiated the investigative stop of Thomason and appropriately conducted a "pat-down" in order to search for weapons, he sought and received Thomason's consent to search the Cutlass'...
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